04 June 2010

Apparently now the government, by which I think we are to understand means "President Obama," "emboldened" by the passage of healthcare and health insurance reform, is declaring "war" on physicians. At least that's the narrative that right-wing outlets would like to create. Dr Wes and Whitecoat approvingly cite a recent article in the Christian Science Monitore as evidence of the heavy boot of government coming down on the necks of hapless physicians who were just trying to exercise some innocent negotiation techniques:

Today the Antitrust Division, joined by Idaho Attorney General Lawrence Wasden, forced a a group of Boise orthopedists to accept price controls for worker’s compensation and HMO contracts as part of a settlement accusing the doctors of “price fixing”:

According to the complaint, the conspiring orthopedists engaged in two antitrust conspiracies, which took place from 2006 to 2008. In the first conspiracy, through a series of meetings and other communications, the orthopedists agreed not to treat most patients covered by workers’ compensation insurance.

I won't belabor the point by thrashing through the whole deceptive piece. The authors, by the way, hail from the Mises Institute, a libertarian think tank, just to let you know their ideologic background is hardly without a clearly defined perspective.

The point that the authors ignore (and Whitecoat and Dr Wes either are unaware of or also fail to point out) is that the doctors who are getting in trouble here because they broke the law. Negotiating is not illegal. Collusion is, and long has been. Maybe because the Bush administration took an eight-year hiatus from enforcing the antitrust statutes people thought they had been repealed, but they are in fact still in effect. The Obama administration may be stepping up enforcement, but physicians have always needed to be aware of and mindful of the law when they are involved in a public dispute with insurers -- especially when it has gotten so nasty that you are taking out ads in the newspapers.

I am involved in a business venture with a group of other ER docs. We are all business types and administrators in separate practices, and it's pretty typical, after we are done with "work" stuff that our meetings/dinners/drinking devolves into bitch sessions about the things that frustrate us about our jobs. Whether it's dealing with malpractice cases, recalcitrant employees, obstinate hospital administrators, etc, we all commiserate and sometimes brainstorm over these vexing and universal issues. When, inevitably, someone brings up "those bastards at Blue Cross" (or whichever insurer has recently caused them heartache) we all laugh, and then an awkward silence falls.

Because we are not allowed to talk about that. It's illegal. And we know it.

And we're just bullshitting. We are not actually working together to group negotiate. These twits in Idaho were, and they got busted. I have no sympathy for them. Which is to say that I have a lot of sympathy for their position: the negotiation landscape for individual physicians and physician groups is tough. It's slanted against the docs whether you are working with a government or private payer. They know what every other doc in the state is contracted at, but you are not allowed to know what anybody else's rates are. It sucks, and unless you have a consultant or some experienced advocate you are likely to get steamrolled in negotiations. So I have a lot of sympathy for that situation. But I have none for their legal predicament. You need to know the law and you need to abide by it. Any doctor who doesn't understand it, or tries to skirt the law is running a terrible risk. And it sounds like these docs got off very lightly: they got a slap on the wrist, without jail time or severe financial penalties.

And I can't resist taking the author of the Christian Science Monitor article to task for a couple of real whoppers:

"And as much as the government would tout the “conspiracy” among physicians ... we’re basically talking about people having conversations with one another." Um, yes. That is what a conspiracy is. Not all conversations are conspiracies, but all conspiracies involve conversations, you see? Some conversations are illegal, and when you take the conversation and act on it by "jointly threaten[ing] to terminate their contracts to force Blue Cross to offer better contract terms," well, that's taking the criminal conspiracy and putting it into action. There should be no outrage over this since it is a black and white violation of the law! And if these guys got an expert anti-trust lawyer to represent them and they wound up settling, it's probably because their lawyer explained how completely fucked they were if they tried to take this to trial.

Another cute lie: "But the DOJ has gone the final step and said, “Government prices are market prices.”" Hmm. It's in quotes so it must be a direct quote, right? Here's proof, the smoking gun, that Obama intends to force us all into the NHS! Except no source is cited and the documents on the DOJ's web site about the case do not contain that phrase, because the author of the article made it up out of whole cloth. Somebody please correct me if I am wrong on this. I rather suspect that if SM Oliva were called on this, he would wave his hands and explain, "Well, that's the practical effect of the government's action," but a made-up quote that attributes a sinister statement to an individual or entity is journalistic fraud.

He goes on: "the Antitrust Division has linked a refusal to accept government price controls with a refusal to accept a “private” insurance company’s contract offer. This lives [sic] little doubt that antitrust regulators consider insurance party contracts the equivalent of government price controls — and physicians and patients have no choice but to accept them." No, no, no, no, no! Doctors remain free to refuse to contract. NOTHING in the settlement says that doctors must accept the rates. What it says is you can't boycott AS A GROUP. It's not the refusal of a contract that is illegal, it's doing it in a coordinated manner by independent players that is illegal!

The coda is a particularly sweet line of bullshit: "And while I usually caution against reading partisan political motives into an antitrust case — and I’d note the Idaho attorney general is a Republican — it’s hard to segregate today’s action from the larger political context of “Obamacare.”" Hmm. Consider me cynical, but it sounds to me as if the whole point of this piece is to read partisan political motives into the case, and your glib conflation of the health care reform bill, which has nothing about anti-trust in it that I am aware of, with this case makes me question your motives even more. You see, I think your actual intent in writing this article was to take a perfectly ordinary, cut-and-dried case of doctors breaking the law and whip it up into a faux outrage which you can use to cast aspersions on an unrelated piece of legislation that you already dislike.

I could go on, but I won't. The point is that there's no scandal here, keep moving, and be sure to read between the lines when a reactionary with a clear agenda makes wild claims about the oppressive boot of government.

The basic law that governs collusive behavior is the Sherman Act which was passed in 1890 to protect the public from 'trusts' like the Standard Oil Trust, Sugar Trust, Railroad Trust etc. Basically large corporations got together to fix prices. Wikipedia has a good article on it. Link

Now, whether it is a good idea to prevent doctors from acting together to negotiate with insurance companies is a different question from whether it is currently illegal.

Shadow- thanks for the informative blog post- Why would an local Washington organization like Prolliance NOT be considered to be collusion between number of specialists in order to negotiate better insurance contacts? I'm certain they have some sort of legitimate legal mechanism protecting them from anti-trust accusations, but what exactly is that mechanism?

Shadowfax

About me: I am an ER physician and administrator living in the Pacific Northwest. I live with my wife and four kids. Various other interests include Shorin-ryu karate, general aviation, Irish music, Apple computers, and progressive politics. My kids do their best to ensure that I have little time to pursue these hobbies.

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